STATE v. MOSES (2005)

PUBLISHED IN PART

¶ 1 A jury convicted Jeffrey Duane Moses of murder in the second degree for the shooting death of his wife, Jennifer Moses.   Moses appeals his conviction on multiple grounds, including violations of his right to confrontation under Crawford v. Washington,¹ improper admission of ER 404(b) evidence and medical examiner opinion testimony, and exclusion of expert testimony regarding Jennifer's depression and Moses' suicide defense. Moses also appeals his exceptional sentence under Blakely v. Washington.²  We affirm Moses' conviction, but reverse the exceptional sentence and remand for resentencing.

FACTS

¶ 2 In the early morning of September 27, 2002, Moses' mother, who lived in California, called the police to report that her daughter-in-law, Jennifer Moses was dead.   The police found Moses on the street outside his house, drinking beer, and carrying his younger son on his back.   Moses' other son was asleep in the house.   According to Moses, Jennifer shot herself and committed suicide.   When the officers attempted to enter the house, he told them it was unnecessary because he had cleaned everything up.   Police found Jennifer wrapped in a rug in the garage, along with a pile of bloody towels and sponges.   Jennifer had a gunshot wound to her head, blunt force trauma to her lips and a cracked tooth.   The .410 gauge derringer used in Jennifer's death was found in the master bedroom.   The derringer had been recently cleaned and was loaded with two unspent shells.   When questioned, Moses told police Jennifer had been depressed and that she came downstairs that evening with the derringer, knelt down and shot herself in the head while Moses tried to get the gun away from her.   Moses said he moved Jennifer's body to the garage to prevent their sons from seeing her.   He then backed his truck up to the garage to load her body into it and bury her in the woods, as she had requested.   When the truck hit a post, Moses said he abandoned the attempt to move Jennifer's body.

¶ 3 Moses was charged with premeditated murder in the first degree and unlawful possession of a firearm.   The State alleged Moses intentionally shot Jennifer during a domestic dispute.   The defense theory was that Jennifer committed suicide because she had a history of depression and suicidal ideation, together with drug and alcohol use.   Over Moses' objection, the trial court admitted out-of-court hearsay statements made by Jennifer and his children to police, a doctor and a social worker about prior domestic violence.

¶ 4 The jury convicted Moses of murder in the second degree with a deadly weapon.   The trial court sentenced Moses to an exceptional sentence of 35 years.³  Moses appeals his conviction and the exceptional sentence.

ANALYSIS

Confrontation Clause

 ¶ 5 Moses contends admission of the out-of-court hearsay statements made by Jennifer and her son, F.M., concerning a prior 2001 incident of domestic violence violated his Confrontation Clause rights under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).   Under the Sixth Amendment, the defendant has the right to confront witnesses and to meaningful cross-examination.  “In all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.”   U.S. Const. amend.   VI.⁴

¶ 6 In the early morning of November 1, 2001, Jennifer's neighbor called 911.   The neighbor reported Moses had hit and kicked Jennifer.   After the police arrived, over the course of an approximately forty-minute interview, Jennifer described the assault. She was then transported to the hospital for treatment of her injuries.   The children, F. and F.M. went with Jennifer to the hospital emergency room (ER).   Jennifer told the treating ER doctor and the hospital social worker that Moses hit her and kicked her in the face.   The trial court admitted statements made by Jennifer to the police, the ER doctor and the social worker as excited utterances.

¶ 7 The hospital social worker also interviewed Jennifer's sons F. and F.M., about the assault.   Based on F.M.'s report that his dad kicked his mom, the social worker called Child Protective Services (CPS).  The social worker testified at trial about what F.M. told her and that she reported the domestic violence assault to CPS.

¶ 8 Before Crawford, an out-of-court hearsay statement was admissible and did not violate the Confrontation Clause if the statement was reliable.   A statement that qualified for admission under a firmly rooted hearsay exception established reliability.⁵  Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980);  State v. Thomas, 150 Wash.2d 821, 855-56, 83 P.3d 970 (2004).   The excited utterance exception is a firmly rooted hearsay exception and an out-of-court statement was admissible if it qualified as an excited utterance.  State v. Woods, 143 Wash.2d 561, 595, 23 P.3d 1046 (2001).

¶ 9 The Supreme Court in Crawford, rejected its decision in Ohio v. Roberts and held that the Confrontation Clause prohibits testimonial hearsay without regard to whether a firmly rooted hearsay exception applies or there is adequate indicia of reliability.   The “unpardonable vice of the Roberts test ․ [was] not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude.”  Crawford, 541 U.S. at 63, 124 S.Ct. 1354.   The Court held that an out-of-court testimonial statement cannot be admitted unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.⁶

¶ 10 The Crawford Court declined to precisely define the Confrontation Clause bar to testimonial hearsay.  Crawford, 541 U.S. at 68, 124 S.Ct. 1354.   The petitioner in Crawford asked the Court to adopt a definition that limited testimonial statements to ex parte in-court testimony or its functional equivalent-“such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.”  Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (quoting Brief for Petitioner 23).   The National Association of Criminal Defense Lawyers urged the Court to adopt a definition that included “ ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” 541 U.S. at 52, 124 S.Ct. 1354 (quoting Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3).   The Court also noted a formulation suggested by the concurrence in White v. Illinois which defined testimonial as “extrajudicial statements ․ contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.”  Crawford, 541 U.S. at 51, 124 S.Ct. 1354, (quoting White v. Illinois, 502 U.S. at 365, 112 S.Ct. 736 (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment)).

¶ 11 Although the opinion suggests different formulations of a definition for testimonial hearsay, the Crawford Court left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” 541 U.S. at 68, 124 S.Ct. 1354.   While the Court in Crawford did not provide a “precise articulation” or comprehensive definition of testimonial hearsay for purposes of the Confrontation Clause, it defined “testimony” as “ ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact’ ” ⁷ and held that whatever else the term covers it applies at a minimum to (1) ex parte testimony at a preliminary hearing and (2) “[s]tatements taken by police officers in the course of interrogations.”   Crawford, 541 U.S. at 52, 124 S.Ct. 1354.

Statements to Police Officers

¶ 12 Under Crawford statements made during police interrogation are testimonial.   But just as the Supreme Court did not comprehensively define testimonial hearsay, it also did not comprehensively define “police interrogation.”   Instead the Court, provided general guidance to determine what constitutes police interrogation.  Crawford, 541 U.S. at 53 n. 4, 124 S.Ct. 1354. First, the Court specified that the term “interrogation” is to be used “in its colloquial, rather than any technical legal sense.”  Id. The Court also held that a declarant's statement “knowingly given in response to structured police questioning” qualifies as testimonial under “any conceivable definition.”  Id.

¶ 13 Post Crawford, our appellate courts have addressed whether particular statements constitute testimonial or non-testimonial hearsay.  State v. Davis, 154 Wash.2d 291, 111 P.3d 844 (2005);  State v. Fisher, 130Wash.App. 1, 108 P.3d 1262 (2005);  State v. Mason, 127 Wash.App. 554, 110 P.3d 245 (2005);  State v. Orndorff, 122 Wash.App. 781, 95 P.3d 406 (2004);  State v. Powers, 124 Wash.App. 92, 99 P.3d 1262 (2004).   Two recent cases, State v. Powers and State v. Davis, specifically address the admission of statements made during a 911 call.

¶ 14 In Powers, the defendant appealed his conviction for violating a domestic violence protection order on the ground that the trial court erred in admitting a recording of the 911 call.  Powers, 124 Wash.App. at 94, 99 P.3d 1262.   In the 911 call, the victim reported the defendant had been in her home in violation of the protective order.   The Powers court rejected the State's request for a bright line rule to admit all 911 calls as contrary to Crawford.   Instead, the court adopted a fact-intensive case-by-case approach and considered whether the purpose of the 911 call was a plea for help, whether the call was part of the criminal incident, and whether the call was made while the crime was in progress or to further a prosecution.   The court concluded the victim's statements to the 911 dispatcher were testimonial because the purpose of the call was to report the crime and “assist in [Powers'] apprehension and prosecution, rather than to protect herself or her child from his return.”   Powers, 124 Wash.App. at 102, 99 P.3d 1262.⁸

¶ 15 In Davis, the Washington Supreme Court held that it is necessary to examine the circumstances and content of a 911 call in each case in order to determine whether “the declarant knowingly provided the functional equivalent of testimony to a government agent.”  State v. Davis, 154 Wash.2d at 302, 111 P.3d 844.   The Court also distinguished emergency 911 calls from the in-custody police interrogation in Crawford:  “Even though an emergency 911 call may assist police in investigation or assist the State in prosecution, where the call is not undertaken for those purposes, it does not resemble the specific type of out-of-court statement with which the Sixth Amendment is concerned.”  Id. at 301, 111 P.3d 844.   The Court stated that the declarant's perspective and purpose for making a statement are important factors to consider in deciding whether a statement is testimonial, and concluded that the emergency 911 call identifying the assailant was not testimonial “because of [the] immediate danger [and] there [wa]s no evidence [the victim] sought to ‘bear witness' in contemplation of legal proceedings.”   Id. at 304, 111 P.3d 844.⁹

¶ 16 Here, Jennifer went to a neighbor's house approximately half an hour after the assault and asked the neighbor to call 911.   Police arrived approximately a half hour later and spent 40 minutes with Jennifer asking questions and taking a detailed statement.¹⁰  Jennifer told the officers that Moses had been drinking and became angry.   She and Moses argued and he threw furniture, punched her, and ripped the phone out of the wall.   When she tried to flee, Jennifer said Moses kicked her in the head and the face.   Deputy Ken O'Neal testified that Jennifer reluctantly reported what happened.  “She was very hesitant to tell us what happened.   She stated that she didn't want him to go to jail.   She was afraid he would lose his job.   He'd be in jail for a long time and she was fearful of having that consequence as a result of reporting this.” ¹¹

 ¶ 17 Although Jennifer may have originally asked the neighbor to call 911 for help and protection, later, over a period of forty minutes, Jennifer gave a detailed report of the assault in response to structured police questioning.   And, during the interview, Jennifer acknowledged the likelihood that her statements could be used in prosecuting Moses.   On this record, we conclude that Jennifer's statements to Officer O'Neal were testimonial under Crawford and should not have been admitted.¹²

Statements Made for Medical Diagnosis or Treatment

¶ 18 Moses challenges the trial court's decision to admit Dr. Appleton's testimony about what Jennifer told him about the assault and the social worker's testimony about what Jennifer and F.M. told her.   Moses argues these out-of-court statements violated his right to the confrontation under Crawford.   In treating Jennifer's injuries, the emergency room physician, Dr. Warren Appleton, interviewed and examined Jennifer.   Jennifer told Dr. Appleton that her husband assaulted her and she complained of neck and jaw pain.   Dr. Appleton testified that Jennifer's jaw was broken “through and through,” ¹³ that her broken jaw was caused by more than one blow and that her injuries were not consistent with falling.   Dr. Appleton testified that Jennifer appeared frightened.   Because of the domestic nature of the assault, Dr. Appleton referred Jennifer and her sons to a social worker as part of treatment.   The hospital social worker, Tamara Muller, interviewed the boys and Jennifer as part of the treatment plan.

 ¶ 19 Under ER 803(a)(4), “[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment” are admissible.   For statements to be admissible under ER 803(a)(4), the declarant's apparent motive must be consistent with receiving treatment, and the medical provider must reasonably rely on the information for diagnosis or treatment.  State v. Lopez, 95 Wash.App. 842, 849, 980 P.2d 224 (1999).   Although statements attributing fault are generally not relevant to diagnosis or treatment, this court has found statements attributing fault to an abuser in a domestic violence case are an exception because the identity of the abuser is pertinent and necessary to the victim's treatment.  State v. Sims, 77 Wash.App. 236, 239-240, 890 P.2d 521 (1995) (Victim's statements to ER doctor and social worker were admissible where victim identified her boyfriend as the person who broke her jaw.).

¶ 20 Courts that have addressed Crawford's impact on statements admitted under the medical diagnosis and treatment exception focus on the purpose of the declarant's encounter with the health care provider.   In State v. Fisher, 130 Wash.App. 1, 108 P.3d 1262, 1269 (2005), the court held that the statement made by a victim of child abuse to a physician was not testimonial.   The victim made the statement the morning after the assault, when the physician asked the child what happened.   In concluding the victim's statement was not testimonial, the court noted that the doctor was not a government employee and there was no indication of a purpose to prepare testimony for trial.  Fisher, 108 P.3d at 1269.   In State v. Vaught, 268 Neb. 316, 325-26, 682 N.W.2d 284 (2004), the Nebraska Supreme court held that a four-year-old's identifying statements to a doctor were not testimonial.   The court determined that the only purpose of the medical examination was to provide medical treatment and there was no indication of a purpose to develop testimony for trial.  Id. at 326, 682 N.W.2d 284.   Similarly, in State v. Scacchetti, 690 N.W.2d 393, 396 (Minn.Ct.App.2005), the court held a statement made by a three-year-old victim of sexual abuse to a nurse was not testimonial.   The victim's statement was in response to the nurse's question about whether anything happened.   The court noted that the nurse sought information to provide a medical diagnosis and was not working on behalf of, or in conjunction with, investigating police officers or other government officials for the purpose of developing testimony for prosecution.  Id.

¶ 21 In cases where courts have found statements to health care providers are testimonial, the prosecutorial purpose of the medical examination has been clear.  People v. Vigil, 104 P.3d 258, 265 (Colo.App.2004);  In re T.T., 351 Ill.App.3d 976, 993, 287 Ill.Dec. 145, 815 N.E.2d 789 (2004).   In Vigil, the case relied on by Moses, a seven-year-old child made a statement identifying the perpetrator of a sexual assault to a doctor.  104 P.3d at 265.   The court in Vigil found the victim's statement was testimonial because the doctor was a member of a child protection team that provided consultation services in cases of suspected child abuse, and the doctor performed a “ ‘forensic sexual abuse examination.’ ” Id. In T.T, the court held that the victim's statement identifying the perpetrator was testimonial because the medical examination was done six months after the assault, for the purpose of pursuing a prosecution.  351 Ill.App.3d at 993, 287 Ill.Dec. 145, 815 N.E.2d 789.   See also People v. Sisavath, 118 Cal.App.4th 1396, 13 Cal.Rptr.3d 753 (2004);  Snowden v. State, 156 Md.App. 139, 846 A.2d 36 (2004).

 ¶ 22 This case is more similar to Fisher and Vaught.   Jennifer was taken to the emergency room of the hospital shortly after the assault for serious injuries.   The ER doctor, Dr. Appleton, testified that he questioned Jennifer in order to provide treatment.   Dr. Appleton examined Jennifer and asked her what had happened and then ordered x-rays of Jennifer's jaw.   And unlike Vigil and T.T., the purpose of Dr. Appleton's examination was for medical diagnosis and treatment of Jennifer's significant injuries.   Dr. Appleton had no role in the investigation of the assault and he was not working on behalf of or in conjunction with the police or governmental officials to develop testimony for the prosecution.   There is also nothing in the record to indicate Jennifer believed or had reason to believe that her statements to Dr. Appleton would be used at a subsequent trial.   We conclude that Jennifer's statements to Dr. Appleton were not testimonial under Crawford.

Statements to the Social Worker

 ¶ 23 An out-of-court statement to a social worker is also admissible if made in the course of diagnosis and treatment.  Sims, 77 Wash.App. at 239-240, 890 P.2d 521.   Two post-Crawford cases have addressed statements to social workers, each holding that the statements were testimonial.  T.T., 351 Ill.App.3d at 989, 287 Ill.Dec. 145, 815 N.E.2d 789;  Snowden, 156 Md.App. at 157, 846 A.2d 36.   In both T.T. and Snowden, the social workers were interviewing children on behalf of the State for the express purpose of gathering evidence for a future prosecution or developing the children's testimony for prosecution.

¶ 24 Here, the hospital social worker, Muller, testified that while Jennifer was sleeping off the effects of the pain medication, she interviewed the children.   F.M. told Muller that he saw Moses kick Jennifer.   Both children reported regular fights between Moses and Jennifer that caused them to hide under their beds. After talking to the children, Muller called CPS to report the assault.   When Jennifer woke up, Muller interviewed her.   Muller testified that Jennifer was initially reluctant to talk about the assault, but was generally cooperative.   Jennifer identified Moses as her assailant, and told Muller that Moses kicked her in the jaw.   At some point during the interview, Muller told Jennifer that she had contacted CPS to report domestic violence.

¶ 25 Because the trial occurred prior to the Supreme Court's decision in Crawford, the record is not clear when Jennifer identified Moses as her assailant during the course of the interview with Muller.   Nor is it clear when Muller told Jennifer that she had contacted CPS. Like Dr. Appleton, Muller was providing treatment to Jennifer and statements in that context are not testimonial.  State v. Sims, 77 Wash.App. at 239-40, 890 P.2d 521.   But once Muller told Jennifer that she had contacted CPS, Jennifer would have been aware of the potential implications of her statements to Muller, and, under those circumstances, Muller's testimony about Moses' assault could be impermissible testimonial hearsay under Crawford.

 ¶ 26 The State contends that F.M.'s statement to the social worker is not testimonial hearsay because it was not offered to prove the truth of the matter asserted.   The Crawford Court explicitly excluded testimonial statements that were not introduced for the truth of the matter asserted from a Confrontation Clause analysis.  Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354. At trial, the State asked Muller why she contacted CPS. Muller testified that she contacted CPS because F.M. told her that his dad kicked his mom.   We conclude that F.M.'s statement was not introduced for the truth of the matter asserted, but to show why Muller contacted CPS. F.M.'s statement did not implicate Crawford, and the trial court did not err in admitting this testimony.

Harmless Error

¶ 27 Moses argues that admission of Jennifer's out-of-court testimonial statements to the police and the social worker was not harmless error.   We disagree.

 ¶ 28 Violation of a defendant's rights under the Confrontation Clause is constitutional error.  State v. McDaniel, 83 Wash.App. 179, 187-188, 920 P.2d 1218 (1996) (citing Harrington v. California, 395 U.S. 250, 251-52, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969)).   It is well established that constitutional errors, including violations of a defendant's rights under the Confrontation Clause, may be harmless.  State v. Guloy, 104 Wash.2d 412, 425, 705 P.2d 1182 (1985) (citing Harrington, 395 U.S. at 251-52, 89 S.Ct. 1726);  Davis, 154 Wash.2d at 304, 111 P.3d 844.  “The correct inquiry is whether, assuming that the damaging potential of the [testimony] were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”  Delaware v.Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).   The reviewing court must look at the untainted evidence to determine if it is so overwhelming that it necessarily leads to a finding of guilt.  Davis, 154 Wash.2d at 304, 111 P.3d 844.

 ¶ 29 The improper testimonial evidence consisted of Jennifer identifying Moses as her assailant in the November 2001 assault, and a brief recitation of Jennifer's description of the assault by the officer, who responded to the 911 call and interviewed her.   The untainted independent evidence of the 2001 assault includes multiple witnesses who identified Moses as Jennifer's assailant, evidence documenting Jennifer's injuries and expert testimony that Jennifer's broken jaw was not the result of a slip and fall.¹⁴  The officer responding to the 911 call also described Jennifer's injuries and the scene at the house, including the phone ripped from the wall.   In addition, the jury heard testimony about arguments prior to Jennifer's death and an argument four days before that resulted in Moses' arrest on an outstanding warrant for the pending domestic violence charge, as well as heated argument the night of Jennifer's murder.   None of this testimony violated Crawford.   We conclude the untainted evidence leads to a finding of guilt and any error in admitting Jennifer's testimonial statements was harmless beyond a reasonable doubt.

¶ 30 The remainder of this opinion has no precedential value.   Therefore, it will not be published, but has been filed for public record.   See RCW 2.06.040;  CAR 14.

ER 404(b) Evidence

¶ 31 Moses contends the trial court erred in admitting evidence of the November 1, 2001 assault and evidence of arguments between Moses and Jennifer in the weeks preceding her death, including an argument that occurred four days before her death which resulted in Moses' arrest on an outstanding warrant for the 2001 assault.   The trial court ruled that the 2001 assault and evidence of arguments and Moses' arrest immediately preceding Jennifer's death, were admissible to show motive, intent, premeditation, absence of mistake and res gestae.15  Moses claims the only relevance of this evidence was to impermissibly prove his propensity to commit the crime in violation of ER 404(b).

¶ 32 ER 404(b) prohibits admission of evidence of other crimes, wrongs, or acts to prove character and show action in conformity therewith.  ER 404(b);  State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995).   However, such evidence may be admissible for other purposes “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  ER 404(b).  Admission of ER 404(b) evidence is reviewed for abuse of discretion.  State v. Brown, 132 Wash.2d 529, 571, 940 P.2d 546 (1997).   An abuse of discretion exists when a trial court's decision is manifestly unreasonable or based on untenable grounds or reasons.   Powell, 126 Wash.2d at 258, 893 P.2d 615.16

¶ 33 Evidence of prior assaults and arguments are admissible in spousal murder trials to show motive, premeditation, res gestae, and intent, particularly where malice or premeditation are at issue.  Powell, 126 Wash.2d at 261, 893 P.2d 615.   Relying on Powell, Moses argues that the 404(b) evidence was inadmissible to prove intent because proof that he shot Jennifer would conclusively establish intent.   We disagree.

¶ 34 In Powell, the Washington Supreme Court held “prior misconduct evidence is only necessary to prove intent when intent is at issue or when proof of the doing of the charged act does not itself conclusively establish intent.”  Powell, 126 Wash.2d at 262, 893 P.2d 615.   The Court concluded the ER 404(b) evidence was inadmissible because the victim could not have strangled herself, and proof of the manner of death therefore established intent.  Id.

¶ 35 Unlike Powell, Moses was charged with premeditated murder and intent was indisputably the central question the jury had to resolve.   Moses was charged with premeditated murder.   The defense theory was that Jennifer committed suicide.   The jury had to decide whether Moses intentionally shot Jennifer or whether Jennifer committed suicide.   Intent was directly at issue and the 2001 assault and testimony about the contemporaneous arguments between Moses and Jennifer and Moses' arrest were admissible and relevant to determine intent.  “Evidence of quarrels between the victim and the defendant preceding a crime, and evidence of threats by the defendant, are probative upon the question of the defendant's intent.” State v. Parr, 93 Wash.2d 95, 102, 606 P.2d 263 (1980).  “ ‘Such evidence tends to show the relationship of the parties and their feelings one toward the other, and often bears directly upon the state of mind of the accused with consequent bearing upon the question of malice and premeditation.’ ” Powell, 126 Wash.2d at 261-262, 893 P.2d 615 (quoting State v. Davis, 6 Wash.2d 696, 705, 108 P.2d 641 (1940)).

¶ 36 We also conclude the 404(b) evidence was admissible to establish motive and res gestae.   In Powell, witnesses testified about six assaults committed by Powell against his wife during the year preceding her death, and arguments that occurred right before she died.   The Court held that the hostile relationship between the defendant and his wife was a “strong motive for the murder,” and evidence of arguments during the days before her death was admissible under res gestae.  Powell, 126 Wash.2d at 260, 893 P.2d 615. 17  Id. Here, the neighbors testified about heated arguments between Jennifer and Moses that occurred four days preceding Jennifer's death and the night she died.   Although the November 2001 assault occurred almost a year before, after a neighbor called police concerning an argument between Jennifer and Moses four days before Jennifer's death, Moses was arrested on the 2001 assault.   As in Powell, evidence of the on-going hostility preceding Jennifer's death was admissible to prove motive and res gestae.

Suicide Defense Evidence.

¶ 37 Moses argues the trial court's decision to exclude expert witness testimony and other relevant evidence deprived him of the ability to present his suicide defense.   Specifically, Moses points to the court's exclusion of expert opinion testimony regarding Jennifer's depression, an autopsy photograph of Jennifer, and extracts from Jennifer's written journals describing her depression and her thoughts of suicide.

¶ 38 The admissibility of evidence rests within the sound discretion of the trial court and will not be disturbed unless no reasonable person would adopt the trial court's view.  State v. Atsbeha, 142 Wash.2d 904, 913-14, 16 P.3d 626 (2001).   A criminal defendant has a constitutional right to present a defense.  Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).   Defendants have the right to present a defense, but do not have the right to introduce evidence that is irrelevant or otherwise inadmissible.   State v. Rehak, 67 Wash.App. 157, 162, 834 P.2d 651 (1992).   A trial court may, in its discretion, reject evidence where the evidence is vague, or where the evidence is merely argumentative and speculative.  State v. Knapp, 14 Wash.App. 101, 108, 540 P.2d 898 (1975).

¶ 39 Moses argues the trial court's exclusion of expert testimony from Dr. Lawrence Wilson violated his right to present a defense.   Dr. Wilson would have testified regarding the nature of Jennifer's depression, the ability of a person who was severely depressed to appear normal to friends and co-workers, and the likelihood that someone with Jennifer's degree of depression together with other risk factors might commit suicide.

¶ 40 Admissibility of expert testimony is governed by ER 702.  ER 702 requires that (1) the witness is qualified as an expert and (2) the testimony would be helpful to the trier of fact.18  State v. Farr-Lenzini, 93 Wash.App. 453, 461, 970 P.2d 313 (1999). Expert testimony is helpful if it concerns matters beyond the common knowledge of the average layperson and does not mislead the jury.  Id.

¶ 41 In State v. Thomas, this court affirmed the trial court's decision to exclude expert testimony offered to support the defense of diminished capacity.  123 Wash.App. 771, 781, 98 P.3d 1258 (2004).   In Thomas, the defense expert would have testified regarding the defendant's history of alcohol use, and that it was possible that the defendant suffered a blackout on the night of the assault.   We concluded the court did not abuse its discretion in excluding the testimony because the expert could not testify that the defendant had consumed enough alcohol that night to suffer a blackout, or that a mental disorder impaired the defendant's ability to form the requisite intent.  Thomas, 123 Wash.App. at 781, 98 P.3d 1258.

¶ 42 Here, Dr. Wilson was retained to form an opinion based only on the records provided by Moses.   Other medical providers, who treated Jennifer, testified about her depression, her suicidal ideation, and her alcohol and drug addiction.   The jury heard testimony from four medical providers.   The Valley General doctor testified that Jennifer had severe depression in March 2002.   The chemical dependency counselor described Jennifer's depression, suicidal ideation and cocaine binges.   Jennifer's Hall Health Center counselor from January to March 2002, testified about Jennifer's depression, that depression is a serious, life-threatening illness and that improvement is unlikely if a person uses drugs and alcohol.   Because the treatment provider, who treated Jennifer's chemical dependency between April and August of 2002, had died, the records custodian read the provider's notes to the jury.   These notes reflected Jennifer's past suicidal ideation and her major and recurrent depression.   During cross-examination, Moses also elicited testimony from the medical examiner that alcohol, drugs and access to firearms present an increased risk of suicide.   Finally, the trial court admitted all references from Jennifer's medical records to suicidal ideation and depression for the entire year and all references from her online journal for the four-month period before her death.

¶ 43 The court ruled the only additional expert testimony Dr. Wilson could provide was that in his opinion that Jennifer had a 0.25 percent increased chance of committing suicide during the six months between diagnosis of depression and time of her death.   Dr. Wilson could not testify about whether Jennifer was suicidal the night of her death-“I would not at this point state that, to a reasonable degree of medical certainty, I think she committed suicide.” 19  Based on the defense offer of proof, the court concluded that Dr. Wilson's testimony was not helpful to the trier of fact under ER 702.   We conclude the court did not abuse its discretion in excluding Dr. Wilson's testimony.   As in Thomas, Dr. Wilson could not testify that Jennifer was suicidal on the night she died, but only that she was in the category of people for whom the risk of suicide is marginally greater than the average person.   Moses was able to elicit the same type of information regarding depression and suicide from other witnesses including Jennifer's treatment providers and the medical examiner.

¶ 44 Moses also argues that the court's exclusion of an autopsy photograph and Jennifer's written journal entries violated his right to present a suicide defense.   Photographic evidence is admissible if the probative value outweighs the prejudicial effect.  State v. Kendrick, 47 Wash.App. 620, 624, 736 P.2d 1079 (1987).   The determination of whether a photograph's probative value is outweighed by its prejudicial effect is left to the sound discretion of the trial court, and the trial court's ruling will not be disturbed on appeal absent an abuse of that discretion.  Id. Moses wanted to introduce an autopsy photograph showing Jennifer's emaciated body so the jury could see how much weight Jennifer had lost.   But multiple witnesses testified that Jennifer had lost 20 pounds in the months prior to her death and the court permitted the defense to question its medical expert about her weight loss.20  In addition, the court admitted other photographs showing Jennifer's upper torso.   The probative value of the autopsy photograph was minimal and the trial court did not abuse its discretion in finding the probative value did not outweigh its prejudicial effect.

¶ 45 Jennifer kept two journals, one that was handwritten and private, and one that was on-line.   The trial court admitted entries from the two journals for the four months prior to Jennifer's death.21  The trial court reasoned that further back in time was too remote to be probative of Jennifer's state of mind on the night she died.

¶ 46 When the journal entries overlapped, the court admitted only the online journal and excluded the written journal.   The trial court decided that the online journal indicated her “state of mind that day or mood and some description of how she was feeling” and the paper journal did not.22  According to Moses, the court improperly excluded several passages from Jennifer's written journal on this basis.   On appeal, Moses points only to the following excluded entry from the four-month period before Jennifer's death: 23

I think mostly my feeling/thought has been why on earth would I want to be born on this place in this existence?   It is so miserable. That thought has been very clear and loud and I can think back as far as I can remember and recall being unhappy about this life and my existence I've been asking god to take the fucking pain away since I was 8 years old!   Probably sooner.24

¶ 47 We conclude the trial court's decision to limit admission of the journal entries to four months prior to Jennifer's death was not an abuse of discretion.   But, the decision to exclude excerpts from her private journal in favor of the public online journal, and the court's decision to admit only the online journal entries was an abuse of discretion.   However, we conclude the erroneous exclusion of the private journal entries harmless.   The trial court admitted relevant parts of the medical records related to Jennifer's depression and suicidal ideation for the entire year before her death.   The court also admitted a number of other statements from Jennifer's journals regarding her state of mind.   And Moses' counsel effectively read and emphasized many of these journal entries in closing argument.25

Improper Opinion Testimony

¶ 48 Moses claims the testimony of the medical examiner and the ballistic forensic expert that Jennifer's death was classified as a homicide was improper opinion testimony that violated his constitutional right to a jury trial.   Improper opinion on guilt violates a defendant's constitutional right to a jury trial and the independent determination of the facts by the jury.   State v. Carlin, 40 Wash.App. 698, 701-702, 700 P.2d 323 (1985) overruled on other grounds by City of Seattle v. Heatley, 70 Wash.App. 573, 854 P.2d 658 (1993).   As a general rule, no witness, lay or expert, may “testify to his opinion as to the guilt of a defendant, whether by direct statement or inference.”  State v. Black, 109 Wash.2d 336, 348, 745 P.2d 12 (1987).   Such testimony has been characterized as unfairly prejudicial because it “invad[es] the exclusive province of the finder of fact.”  Id. at 348, 745 P.2d 12.   But testimony that is not a direct comment on a defendant's guilt, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony.  State v. Sanders, 66 Wash.App. 380, 388, 832 P.2d 1326 (1992).   The trial court is accorded broad discretion to determine the admissibility of testimony.   Whether testimony constitutes an impermissible opinion on guilt will generally depend on the record and the circumstances of each case, including the type of witness involved, the specific nature of the testimony, the nature of the charges, the type of defense, and the other evidence before the trier of fact.  Heatley, 70 Wash.App. at 579, 854 P.2d 658.

¶ 49 In State v. Jones, this court held the opinion testimony of two experts that the death of a four-month-old child could not have occurred in the manner described by the defendant did not invade the province of the jury because the doctors did not testify that the defendant actually inflicted the injury.   59 Wash.App. 744, 751, 801 P.2d 263 (1990).   The doctors' opinions in Jones were based on the physical injuries to the child and whether they could be caused by roughly pulling the child out of a swing as the defendant claimed.   Id. at 750, 801 P.2d 263.

¶ 50 Other courts have held that medical examiner testimony classifying a death as a homicide does not invade the province of the jury.   For instance, in State v. Bradford, the victim was found with a gunshot wound to the head.   618 N.W.2d 782, 787 (Minn.2000).   The defendant claimed the victim committed suicide.  Id. The court held that the medical examiner's testimony that the death was homicide was admissible because a lay juror may not be able to differentiate between a self-inflicted gunshot wound and a gunshot wound inflicted by another, and the testimony did not impermissibly address intent.   Id.26

¶ 51 Both the medical examiner and the ballistics expert testified that they classified Jennifer's death as homicide.   The medical examiner, Dr. Harruff, explained that the homicide classification is used to determine whether a death needs to be investigated.   Dr. Harruff made it clear that classifying a death as a homicide has nothing to do with the jury's decision or a defendant's intent because “that's not my job” 27 and that “I am not in a position, as the jury is, to render, a final conclusion as to whether this represents a murder or not.” 28  The firearms expert, Thompson, testified that he classified the death as homicide based on in his experience and the position of the wound combined with the force required to pull the trigger.29  On this record, we conclude that the testimony of Dr. Harruff and Thompson that Jennifer's death was classified as a homicide was not impermissible opinion testimony.

¶ 52 Moses also argues that Dr. Harruff's testimony was not helpful to the jury and impermissibly invaded the province of the jury because he relied on factors outside his area of expertise.   We disagree.   In direct and redirect examination, Dr. Harruff's testimony was based on the facts regarding Jennifer's injuries and that the gunshot wound was a contact wound.   On cross-examination, Moses' lawyer elicited testimony that Dr. Harruff had read portions of Jennifer's journal and had read Moses' police statement.   But Dr. Harruff made clear that because this information was ambiguous, he limited the classification for Jennifer's death to objective factors. Dr. Harruff testified that the objective factors he relied on included the wound location, the fact that it was a contact wound, the orientation of the weapon, and the difficulty of the gun's trigger pull.   Dr. Harruff explained that it was not his role to determine whether a death was a murder.30  At no point did Dr. Harruff tell the jury what conclusion to reach.31  Under these circumstances, we conclude Dr. Harruff's testimony did not improperly invade the province of the jury.32

ER 404(b) Jury Instruction

¶ 53 Moses argues that the trial court's jury instruction regarding the 404(b) evidence was an impermissible comment on the evidence.   Jury Instruction No. 4 states:

Evidence has been introduced in this case on the subject of the defendant's alleged prior crimes, wrongs or acts for the limited purpose of establishing the motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, as well as the nature of the relationship between Jennifer and Jeffrey Moses.   You must not consider this evidence for any other purpose.33

Jury instruction No. 4 is based on WPIC 5.30.34  Moses argues that Instruction No. 4 impermissibly communicated the trial court's belief that the bad prior acts evidence epitomized the nature of the relationship between Moses and Jennifer and was relevant to whether Moses killed Jennifer.

¶ 54 An impermissible comment on the evidence is one “which conveys to the jury a judge's personal attitudes towards the merits of the case or allows the jury to infer from what the judge said or did not say that the judge personally believed the testimony in question.”  State v. Swan, 114 Wash.2d 613, 657, 790 P.2d 610 (1990).   A statement by the court will constitute an improper comment on the evidence only if the jury is able to infer that the trial judge personally believes or disbelieves the evidence relative to a disputed issue.   State v. Louie, 68 Wash.2d 304, 314, 413 P.2d 7 (1966).   We conclude Jury Instruction No. 4 is not an impermissible comment on the evidence.   The instruction properly limited the jury's consideration of the 404(b) evidence and does not provide an indication of the court's opinion.

Cumulative Error

¶ 55 Moses contends cumulative error denied him a fair trial.   The cumulative error doctrine applies when several trial errors occur which, standing alone, may not be sufficient to justify reversal, but when combined, may deny a defendant a fair trial.  State v. Greiff, 141 Wash.2d 910, 929, 10 P.3d 390 (2000).   Where errors have little or no effect on the outcome at trial, the doctrine is inapplicable.  Id. In this case the errors were harmless and Moses was not denied a fair trial.

Exceptional Sentence

¶ 56 Moses received an exceptional sentence based on the trial court's finding that the current offense involved domestic violence, was part of an ongoing pattern of abuse, and occurred in front of the children;  that the defendant's lack of remorse was continuing and aggravated;  that Moses' efforts to conceal the crime were egregious;  and that Jennifer was a witness in the pending assault charge.   Moses argues that under Blakely v. Washington, his exceptional sentence is unconstitutional.  542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

¶ 57 Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the maximum authorized by the verdict must be submitted to a jury and proved beyond a reasonable doubt.  Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000);  Blakely, 124 S.Ct. at 2531.   Moses had a prior conviction for domestic violence, and pleaded guilty to the 2001 assault charge.   Under Blakely, whether these convictions established an “ongoing pattern of abuse” over a prolonged period of time, 35 as well as the other four aggravating factors found by the court, must be submitted to a jury and proved beyond a reasonable doubt.

¶ 58 The State argues that any error under Blakely was harmless because four of the findings that support the exceptional sentence were based on undisputed facts.   The Washington Supreme Court recently held that Blakely violations are not subject to a harmless error analysis.  State v. Hughes, 154 Wash.2d 118, 148, 110 P.3d 192 (2005).   We conclude Moses' exceptional sentence must be reversed.

CONCLUSION

¶ 59 We affirm the conviction but reverse the trial court's exceptional sentence and remand for resentencing.

FOOTNOTES

1.   541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

2.   542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

3.   The standard range sentence was 235 to 335 months.

4.   The Sixth Amendment was incorporated and made applicable to the States through the Due Process Clause of the Fourteenth Amendment.   Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

5.   A statement that qualified for admission under a “firmly rooted' hearsay exception is so trustworthy that adversarial testing can be expected to add little to its reliability.”  White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992).

6.   Crawford, 541 U.S. at 68, 124 S.Ct. 1354 (“Where testimonial evidence is at issue ․ the Sixth Amendment demands what the common law required:  unavailability and a prior opportunity for cross-examination.”).

7.   Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)).

8.   Using a similar analysis, this court in State v. Mason adopted a case-by-case approach and looked to the purpose of the declarant in victim-initiated contacts with the police.   The Mason court concluded that the victim's statements to four police officers and a victim's advocate were not testimonial because they were made with the purpose of seeking help and protection when the victim was in peril.  Mason, 110 P.3d at 249.

9.   The Court decided that other statements in the 911 call that were not related to seeking help and protection were testimonial but admission was harmless.  Davis, 154 Wash.2d at 305, 111 P.3d 844.

10.   Because the trial occurred before Crawford, the record is unclear as to the timing of Jennifer's statements about Moses during the police questioning.

11.   Report of Proceedings (RP) (10/15/03) at 77.

12.   The State argues that because Jennifer's statement to the police officer was an excited utterance, it is therefore implicitly not testimonial.   Although some courts have found this argument persuasive, Washington courts have declined to adopt this approach.   See Davis, 154 Wash.2d at 291, 111 P.3d 844 (statement admitted as an excited utterance contained both testimonial a non-testimonial elements);  Powers, 124 Wash.App. at 99-101, 99 P.3d 1262 (911 call admitted as an excited utterance was testimonial);  c.f. People v. Corella, 122 Cal.App.4th, 461, 469, 18 Cal.Rptr.3d 770 (2004);  Hammon v. State, 829 N.E.2d 444, 453 (Ind.2005).

13.   RP (10/16/03) at 39.

14.   See RP (10/22/03) at 41, 52, 57 (Renne McCormack, coworker);  RP (10/21/03) at 68, 111 (Henry Anderson, friend);  RP (10/20/03) at 25 (Brian Green, Jennifer's stepfather, reading statement by Moses).   RP (10/28/03) at 13 (Barbara Alexander, from mental health treatment reports).

15.   The court carefully considered the 404(b) evidence, and excluded a prior assault in 2000, an incident when Moses threw a computer out a window, and the facts of a 2001 domestic violence conviction as more prejudicial than probative.

16.   A trial court must also state on the record whether the danger of undue prejudice substantially outweighs the probative value of such evidence.  ER 403.

17.   Washington courts have also relied on the res gestae exception to admit evidence of other misconduct “[t]o complete the story of the crime on trial by proving its immediate context of happenings near in time and place.' ” Powell, 126 Wash.2d at 263, 893 P.2d 615 (quoting State v. Tharp, 27 Wash.App. 198, 204, 616 P.2d 693 (1980)).

18.   ER 702 provides:If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill experience, training or education, may testify thereto in the form of an opinion or otherwise.

19.   RP (10/16/03) at 139.

20.   RP (10/23/03) at 108;  RP (10/22/03) at 73;  RP (10/27/03) at 50, 111, 130.

21.   There was no written journal for the period of two months prior to her death, and no online journal for one month prior.

22.   RP (10/21/03) at 134.

23.   The other journal entries Moses points to in his brief as improperly excluded were prior to the four-month cut-off date.

24.   Appellant's Brief at 24.

25.   RP (10/29/03) at 67-71.

26.   See also Willis v. State, 274 Ga. 699, 701, 558 S.E.2d 393 (2002) (Homicide has no legal type meaning and testimony did not invade province of jury on whether death was intentional or accident);  Sippio v. State, 350 Md. 633, 655, 714 A.2d 864 (1998) (Testimony of homicide did not invade province of jury where ultimate issue was whether defendant shot the victim intentionally or accidentally);  State v. Richardson, 158 Vt. 635, 636, 603 A.2d 378 (1992) (Testimony regarding homicide did not intrude upon the role of the jury because the jury still had to decide the ultimate question of whether the defendant was involved.).

27.   RP (10/21/2003) at 34.

28.   RP (10/21/03) at 34.

29.   Moses' argument that Thompson's testimony was not helpful to the jury is without merit because the trigger pull of a derringer is outside the knowledge of the average juror.

30.   RP (10/21/03) at 34.

31.   RP (10/21/03) at 28.

32.   Moses also argues that Tamara Muller's testimony that a domestic violence victim is most likely to be killed when she leaves home was impermissible opinion testimony as to guilt.   Because Moses did not object at trial, he has not preserved this issue for appeal.  RAP 2.5(a).   In any event, Muller did not testify as an expert and his statement did not refer specifically to Moses.

33.   CP at 135.

34.   11A Washington Pattern Jury Instructions-Criminal (WPIC) 5.30 states:Evidence has been introduced in this case on the subject of for the limited purpose of -----.  You must not consider this evidence [for any other purpose][for the purpose of].

35.   See RCW 9.94A.535(h)(i).

SCHINDLER, J.